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[2015] ZASCA 36
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Magwaza v S (20169/2014) [2015] ZASCA 36; [2015] 2 All SA 280 (SCA); 2016 (1) SACR 53 (SCA) (25 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 20169/2014
Reportable
In the
matter between:
SIPHO
PATRICK
MAGWAZA
..................................................................................
APPELLANT
and
THE
STATE
...............................................................................................................
RESPONDENT
Neutral
citation:
Sipho Patrick Magwaza v The State
(20169/14)
[2015] ZASCA 36
(25 March 2015)
Bench:
Ponnan, Maya, Mhlantla and Zondi JJA and
Meyer AJA
Heard:
16 March 2015
Delivered:
25 March 2015
Summary
:
Evidence – proscriptive evidence – s 35(5) of the
Constitution – evidence excluded because its admission
detrimental
to the administration of justice.
ORDER
On
appeal from
: KwaZulu Natal High Court, Pietermaritzburg (PC
Combrinck J (Kondile and Theron JJ concurring) sitting as a court of
appeal.
The
appeal is upheld and the conviction and sentences imposed pursuant
thereto are set aside.
JUDGMENT
Ponnan
JA (Maya, Mhlantla and Zondi JJA and Meyer AJA concurring):
[1] The
appellant, Sipho Patrick Magwaza, was originally indicted as accused
number 4 together with three others on five charges.
However, at the
commencement of the trial before Galgut DJP (sitting with assessors)
in the High Court (Durban and Coast Local
Division) all of the
charges were withdrawn against two of the accused and the first
charge was withdrawn against the two that
remained. In the result,
the appellant and his co-accused (accused 1 in the trial court) stood
trial on one count each of murder
and robbery with aggravating
circumstances. The latter also faced two additional charges
pertaining to the unlawful possession
of a firearm and eleven rounds
of ammunition.
[2] On 13
April 2000, a gang of armed men attacked a pension payment point at
Klaarwater Community Centre in Marianhill, KwaZulu
Natal and made off
with approximately R460 000. During the course of the robbery
one of the security guards was fatally wounded
and dispossessed of
his firearm and its ammunition. The appellant and his co-accused were
convicted as charged and sentenced to
imprisonment for life. With the
leave of the trial court, both accused appealed against their
convictions to the full court of
the Natal Provincial Division. PC
Combrinck J (Kondile and Theron JJ concurring) dismissed the appeal.
The further appeal by the
appellant is with the special leave of this
court.
[3] It was
not in dispute before Galgut DJP that the offences in question had
indeed been perpetrated. In any event as the learned
judge recorded,
the ‘accused . . . formally admitted that the crimes were
committed’. He added:
‘
That
the crimes on counts 2 and 3 were committed in the furtherance of a
common purpose furthermore is on the evidence equally plain.
One or
more of the robbers had obviously been armed and, in the absence of
anything further, it is plain that every member of the
gang was aware
that one or more of the members was armed, that one or more firearms
might be used during the robbery and that someone
might be shot and
killed. Each member of the gang therefore shared a common purpose
with the others in regard to the use of a firearm.
Each was therefore
responsible for the shooting even though there may be no proof of who
it was who fired the shot that killed
the deceased. Even though there
may have been no direct intention to kill there was what is in law
called
dolus eventualis
which simply means that anyone in the
gang who knew that the firearm might be used, who knew that someone
might be killed and who
nevertheless recklessly remained in the gang
and took part in the robbery is in law held to have had the necessary
intention to
kill.
Accused
Nos 1 and 4 deny that they had been part of the gang that day, and
that is therefore the sole issue before us. Despite the
fact that
scores of pensioners and others were present and witnessed the
incident, and that it occurred in broad daylight, not
one of them was
apparently able either to see or later to identify any of the
culprits.’
[4] The
State case against the appellant consisted, in sum, of a pointing out
by him to Captain Neville Eva shortly after his arrest,
together with
certain utterances during the course of that pointing out, which
according to Galgut DJP amounted to a confession.
After an
admissibility trial that evidence was ruled admissible and the
appellant was convicted on the strength of it. In the course
of his
judgment the learned judge observed:
‘
We
are loath to convict any accused person on the single and
uncorroborated evidence of a confession, as is now the case with
accused
No 4. We adopt this approach for reasons I do not propose to
go into, save to say that we are aware of the inherent dangers of
doing so. In the instant case, however, accused No 4 has been such a
bad witness and the evidence of Eva and Ximba has been so impressive
that we have no doubt of accused No 4’s guilt. We are
strengthened in this in particular by accused No 4’s evidence
about informing Eva of a spot where he had allegedly lost his
firearm.’
The full
court affirmed that conclusion and in the result dismissed the
appellant’s appeal.
[5] The
appellant was arrested some two months after the offences had been
committed at approximately 8.30 am on 8 June 2000 at
the Umlazi
Magistrates’ Court. His arrest, allegedly on the strength of
information furnished by a police informer, was effected
by a team of
detectives including Inspector Govender and the investigating
officer, Inspector Mbatha of the Westmead Murder and
Robbery Unit,
Pinetown. According to Govender, he warned the appellant at the
time of his arrest of the allegation and his
rights in terms of
section 35 of the Constitution. He added under cross-examination:
‘
Inspector,
you advised the Court that you informed the accused of his rights.
Did you read out his rights? --- Not from any document,
but from my
memory.’
On that
score Mbatha had this to say:
‘
And
Inspector Govender told the Court, and you confirmed, that at the
time of accused No 4’s arrest his constitutional rights
were
explained to him. --- That is correct.
Were
these rights read to him? --- As I explained in my evidence-in-chief
that the rights were read.
GALGUT
DJP
They were read to him? --- Yes.
From
which document? --- From the form, the section 35 notice.
Did
you have that with you at the time of the arrest? --- I did not have
the forms on me.
Well,
I think the attorney is talking about the time of his arrest.
---
No, at the time of accused No 4’s arrest the forms were not
there with us.
Well,
let’s ask the question again. Was he nevertheless advised
of his rights, yes or no? --- Yes, he was.
MS
HARIRAM
. . . And you interpreted these rights?
---
Yes.
What
exactly did you interpret? --- Well, I cannot be precise on the words
used when we were at Umlazi but he was advised that he
has a right to
remain silent. He was also informed of his right to contact his legal
representative. These are the rights I can
recall that were explained
to him when we were at Umlazi.’
[6] The
interaction at the Westmead Murder and Robbery Unit between
Inspectors Govender and Mbatha on the one hand, and the appellant
on
the other, was crucial to the admissibility enquiry and in turn to
the conviction of the appellant. According to Govender:
‘
.
. . at the Murder and Robbery Office, M’Lord, it was the
accused that was in the office with Mr Mbatha, Thabethe and myself.
This,
just for the record, happened on the 8
th
June? --- On the
8
th
June. Probably it was about 9 o’clock or
thereafter on that morning. In respect of this accused, M’Lord,
again, I informed
him that we were going to interview him about the
allegation. Mr Mbatha was going to act as the interpreter. Prior to
the interview
with the accused, I warned him in respect of his rights
in terms of the Constitution, and as the exhibit that I handed in,
the
document, it was the very same information that I had explained
to the accused. This was interpreted by Mbatha, and the accused
was
prepared to continue with the interview. Again, M’Lord, he did
not request the services of an attorney or, if he could
not afforded
one, if I had to arrange one free of any cost to him.
Just
before you proceed, Inspector, just before you took the witness stand
you helped me and assisted me in looking for a similar
docket . . .
[intervention] --- Document.
.
. . as Exhibit G for accused No 4 and we couldn’t find
it. ---
That
is correct.
GALGUT
DJP
Docket?
MR
DE KLERK
Document. Was there a similar document like that
signed by accused No 4? --- Specifically, I cannot recall. Mr Mbatha
filed
the docket. But what I can recall. M’Lord, is that I did
warn the accused of his rights.’
Inspector
Mbatha added:
‘
GALGUT
DJP
On what you have told us, at your offices
accused No 4 was not told of his rights. --- He was warned of his
rights.
I omitted that.
Well,
tell us about it. --- Before we could proceed with the interview of
accused No 4 he was told about his rights. He also signed
a form
containing his rights.
Where
is that form? --- I filed it in the docket.
You
filed it or you found it? --- I filed it.
Well,
where is it? --- When we looked for it, we could not find it.
Now
tell me, in regard to that document, both with regard to accused No 1
and accused No 4, how exactly were the rights explained?
--- They
were explained as they appear in the form.
What
do you mean by that? --- As they appear in the form, that he has a
right to remain silent. He has a right not to incriminate
himself.
No,
no, I don’t want to know what your recollection is of what the
form says. I’m concerned to know how Govender went
about
informing him of his rights. Let’s take accused No 1 first. ---
I don’t quite follow the question.
You
say Govender explained his rights to him? --- Yes.
And
that he made use of the form? --- Yes.
Well,
how did he go about it? --- As the rights appear in the form.
So
he didn’t read them to him? --- The rights were read as they
are written in the form.
Well,
why don’t you say so? --- Perhaps the way I explained it was
not quite clear.
Well,
it wasn’t clear and it’s not clear to me. Did he read
those rights or did he simply summarise them in his own
words? --- He
wrote the rights as they appear in the form.
He
read them? --- Yes, he read them and I read and interpreted them.
Did
that happen with accused No 4 as well? --- That is correct.’
[7] Having
commenced his interview with the appellant at approximately 9 am that
morning, by 10.30 am Govender had made telephonic
contact with
Captain Eva (so testified the latter) with the request that he assist
with a pointing out. In endeavouring to explain
how it came to pass
that the appellant had elected to participate in a pointing out,
Govender testified:
‘
I
then questioned the accused by questioning him with certain question
orally. Mbatha also did question him, and that at a stage
that the
replies that came back from the accused I then cautioned him that he
should stop and that at this stage that what he had
been telling me,
there were certain forums that that could be addressed to. I
personally could not take it any further. I informed
the accused that
he could say the same things said to a Magistrate or mention that to
an independent policeman. M’Lord, the
accused adopted to want
to do a pointing out. At that time I left the accused in the company
of Inspector Mbatha and then left
to contact an officer. I then got
hold of Captain Eva. M’Lord, when Captain Eva then got to the
office, if I can recall correctly,
is that I handed the accused to
Captain Eva.
.
. .
GALGUT
DJP
Tell me something, you say in regard to accused No 1 that you
told him he could do a pointing out to an independent policeman of
sufficient rank? --- That is correct, sir.
So
was it your idea that he should do a pointing out? --- No, it was
not. What I said – could I explain, M’Lord?
Well,
I wanted to ask you because the way you put it I got the impression
that you suggested to him that he should do a pointing
out. --- No,
no, M’Lord. What I . . . [intervention]
How
did it happen? --- What I said to him is that he could make a
statement to what he said to a Magistrate or he could say that,
what
he was saying, to a police officer of sufficient rank or point out
certain places to that officer.
Well
then, as I understand it, it was you that put the idea into his head
to do a pointing out? --- If that’s what the Court
is saying,
M’Lord, yes, I said that to him from the replies he had given
me.
Well,
let’s make no secret of it. What were those replies then? ---
From the accused?
What
is bothering me, you’ve not suggested that he said to you that
he wanted to point something out to you. --- If I can
explain to the
Court, M’Lord.
Yes.
--- From the replies of the accused, regarded the places where this
offence happened. From that reply I then canvassed the
issue
regarding a pointing out. The pointing out to an officer is about
pointing certain places out. That’s what was said.
On
that explanation then, it was not a case of him saying to you that he
wanted to point something out to you? --- Not to me, no.
What
. . . [intervention]
The
question of a pointing out arose because you said to him that, if he
wanted to, he could point out whatever to a policeman,
an independent
policeman? --- That is correct. That is correct.
Does
the same apply to accused No 4? --- The same, M’Lord.
So
in his case too, it is not a case of him saying to you, “I want
to point something out to you”, and you saying to
him, “No,
wait a minute, you mustn’t point it out to me, you must point
it out to an independent policeman”?
--- That is correct,
M’Lord. That is correct.
What
is correct? --- That he can point that out not to me, to an
independent policeman.
I’m
going to start again, because you don’t understand. It was not
a case of him saying to you, “I want to point
out a place to
you, to you, Govender”. --- Yes, M’Lord.
It
didn’t happen that way. --- If I could explain, M’Lord,
it happened that what the accused said from his reply is
that he
could point out the place where this incident happened. I told him
that I am not in a position from my rank and status
to take the
accused to that place so that he can point it out to me but he could
point that place out to an independent police
officer of sufficient
rank.
Well,
that doesn’t answer my question, unfortunately. He did not say
to you, “I want to point something out to you”?
--- Yes,
he did. From his replies he said that – from the replies, my
question and answers, from his replies he said he was
prepared to
point out certain places. Now, in context from the answers given by
the accused, I said to him, “I cannot take
you to those
places”, but he could point that place out to a policeman to
the rank of Captain and above.
That’s
what I said, M’Lord.
Inspector,
perhaps because my question isn’t clear, you don’t
understand what it is I’m trying to get from you.
Did he say to
you, “I want to point something out”, or did you say to
him, “Are you prepared to point something
out”? --- He
wanted to – he said to me that, “I want to point
something out”. It was from the accused.
And
this was said before there was talk about an independent officer? ---
This was said, yes, before there was talk about an independent
officer.
Why
would they want to point anything out to you? What was the reason?
How was that going to help anybody? --- Well, it’s
going to –
from the questions that was put to him, it’s going to assist is
that they knew the place where the commission
of the offence had
taken place and whatever transpired there.
I
don’t understand, quite frankly. You knew already where the
incident had taken place. --- That is correct, M’Lord,
but I
did not know what part the assailants or the suspects or the accused
had played. I did not know that.
Well,
quite obviously, what each accused said to you amounted to a
confession? --- That is correct, M’Lord.
Is
that right? --- That is correct.
Why
then would the accused want to point anything out to show what their
precise participation was? --- Because they volunteered
the
information to me. It was from their own doing that they did this.
I
ask this question because I would have thought that the thing would
have proceeded like this, that the accused would have said
to you,
“Yes, I took part and I did A, B and C”, and that you
would have said, “Well, are you prepared to point
these things
out to me?”. You say it didn’t happen that way? --- I
understand what you’re saying, M’Lord.
No, what happened
is that, from their answers that the accused would have said to me
that, “Listen,”, after telling
me what happened is that,
“I am prepared to point out what happened on that day and the
position of the places”. That’s
what happened.
So
they didn’t say that because you had first asked whether they’d
be prepared to do so? --- No, M’Lord, I did
not ask them first.
No?
--- No, it came voluntarily from them.
Well,
then I come back to my other question. Why would they want to do this
pointing out? I ask because quite obviously . . . [intervention]
---
Yes, I understand.
Quite
obviously, I would have thought it would have been of more interest
to you for them to do a pointing out than for them to
offer to do so.
--- M’Lord, I cannot pre-empt what is in the accused’s
mind at that stage but it’s their voluntariness
to co-operate
in the investigation. Many accused persons from different examples
will say, “Listen, I can even point out
the place to you”.
It’s a fact of life.’
[8]
Inspector Mbatha, who it will be recalled was not just the
investigating officer, but also acted as Govender’s
interpreter,
had this recollection:
‘
We
arrived at our offices at Westmead and we sat with accused No 4 in an
office. In that office it was Inspector Govender and myself.
We
started asking him questions. The questions that we asked accused No
4 were more or less the same as the questions we had asked
accused No
1. During the questioning it came to a stage where Inspector Govender
had to warn accused No 4 with regards to what
accused No 4 was
saying. Accused No 4 also ended up wanting to make a pointing out. It
was Inspector Govender who made the necessary
arrangements for that
pointing out. Accused No 4 did the pointing out on that same day.’
When asked:
‘What happened after the volunteering of this information?’
He replied:
‘
Well,
it was at that stage that Inspector Govender stopped him and
explained to him that there were other ways in which this could
be
dealt with because for him to give us that information was not
sufficient.’
His
evidence continued:
‘
And
what ways did Inspector Govender suggest? --- He explained to him
that he could go and make a statement to a Magistrate and
that he
could also go and point out the scene where the offence was
committed.’
As
confusing as Govender’s account was, that confusion was
compounded by Mbatha’s evidence. It is plain that Mbatha’s
conceptual understanding of what had transpired during the interview
appears to have differed markedly from that of Govender. According
to
Mbatha’s understanding the election by the appellant to point
out the scene was because of his having furnished information
to them
that was not sufficient – whatever that may mean. What exactly
he intended to convey by ‘that information was
not sufficient’
or in what respects it was insufficient was regrettably not explored
any further during his evidence. Significantly,
Mbatha added:
‘
Accused
No 4 said if we want to he could go and show us the scene where the
robbery was committed, and that was before Inspector
Govender warned
him. That was the information that came out from accused No 4
himself.’
[9] As
recorded in the pointing out form completed by Captain Eva, he met
with the appellant in his private office at the Westmead
Murder and
Robbery Unit at 11.15 that morning. The first part of that form
records the details of the: (a) suspect; (b) commissioned
officer;
(c) interpreter; and, (d) the venue where the interview was being
conducted. That is followed by what is described as
Part A headed
‘HEREAFTER I ASK THE SAID PERSON:’. The first question
put to the appellant by Captain Eva under Part
A was ‘Do you
know why you were brought to me, and if so, why?’ The answer
that that question elicited was ‘Yes
we pulled and armed
robbery at Klaarwater’. Part B of the form headed ‘I NOW
CONVEY THE FOLLOWING INFORMATION TO THE
SAID PERSON:’ reads:
‘
5.
I am an Officer in the South African Police Service and as such I am
also a Justice of the Peace. A Justice of the Peace is a
Police
Officer who, by the virtue of his appointment, has the same rights
and powers as those of a Magistrate with regards to the
recording of
statements. A Police Officer such as myself, can accordingly testify
in a subsequent trial about what a person has
said and pointed out,
whereas a Non-commissioned Officer can only testify in regards to
what was pointed out.
Do
you understand this? . . . Yes.
6.
I have nothing to do with the investigation of this case and you have
nothing to fear from me. Further, if you have been assaulted
or
forced in any way to make a statement or do a pointing out, I am able
to assist you. If necessary I can also arrange protection
for you
against any irregularities.
Do
you understand this information? . . . Yes.
7.
You are not obliged to point out any scene(s) and/or point(s) on the
scene(s) or to say anything about such point(s) or scene(s).
You are
further warned that whatever you may point out or may say will be
noted down and photographs of the scene(s) and/or point(s)
pointed
out will be taken and may later be used as evidence against you in a
subsequent trial.
Do
you understand this warning? . . . Yes.
8.
You have the right to remain silent. (I also explain to the said
person the consequences if he/she elects to say something).
9.
You are not obliged to make any confession, admission or statement
that might be used against you in a subsequent trial.
Do
you understand this? . . . Yes.
10.
You also have the right to consult with a legal representative of
your choice, and if you cannot afford the services of such
legal
representative, a legal representative can be appointed for you who
is not in the employment of the State and whose services
will be
provided at no cost to yourself.
10.1
Do you understand these rights? . . . Yes.
10.2
Do you wish to exercise either of them? . . . No.
10.3
If so, how do you wish to do that? . . . N/A.’
[10] Save
for certain notable exceptions, the general approach adopted in South
Africa prior to 1994 was that relevant evidence
was admissible
regardless of whether it was illegally or improperly obtained.
A
court of appeal, it was said, does not enquire whether the trial was
fair in accordance with 'notions of basic fairness and justice'
or
with the 'ideas underlying the concept of justice which are the basis
of all civilised systems of criminal administration’
(
S
v Rudman & another; S v Mthwana
1992 (1) SA 343
(A) at 377). That was an authoritative statement of
the law before 27 April 1994. It no longer is. Our Constitution now
requires
criminal trials to be conducted in accordance with just
those notions of basic fairness and justice.
In
S v Zuma &
other
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 16 it was said by Kentridge AJ
that the right to a fair trial 'embraces a concept of substantive
fairness' and that it
is for the criminal courts hearing criminal
trials or appeals 'to give content' to the notions of basic fairness
and justice which
underpin a fair trial.
[11] In the
United States of America, subject only to the so-called 'reasonable
mistake' exception, evidence obtained in violation
of the
Constitution is excluded. The drafters of our Constitution appear to
have adopted a
via media
between the approach adopted in the
USA on the one hand and that formerly adopted in South Africa on the
other. In doing so, they
have largely followed the example of
Ireland, Australia, New Zealand and particularly Canada (
S v
Pillay & others
2004 (2) SACR 419
(SCA) at 444
d-i
).
Thus in terms of s 35(5) of the Constitution: ‘Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render the
trial unfair or otherwise detrimental to the administration
of
justice.'
Of s 35(5), this court (
S v Tandwa & others
[zRPz]
2008 (1) SACR 613
(SCA) paras 116-117) stated:
‘
The
notable feature of the Constitution's specific exclusionary provision
is that it does not provide for automatic exclusion of
unconstitutionally obtained evidence. Evidence must be excluded only
if it
(a)
renders the trial unfair; or
(b)
is otherwise
detrimental to the administration of justice. This entails that
admitting impugned evidence could damage the administration
of
justice in ways that would leave the fairness of the trial intact:
but where admitting the evidence renders the trial itself
unfair, the
administration of justice is always damaged. Differently put,
evidence must be excluded in all cases where its admission
is
detrimental to the administration of justice, including the subset of
cases where it renders the trial unfair. The provision
plainly
envisages cases where evidence should be excluded for broad public
policy reasons beyond fairness to the individual accused.
In determining whether the trial is rendered unfair,
courts must take into account competing social interests. The court's
discretion
must be exercised “by weighing the competing
concerns of society on the one hand to ensure that the guilty are
brought to
book against the protection of entrenched human rights
accorded to accused persons” . . .’
[12] Section 24(2) of the Canadian Charter of Rights and
Freedom, Part I of Constitution Act, 1982 requires evidence obtained
in
a manner that infringed guaranteed rights to be excluded if its
admission 'would bring the administration of justice into disrepute'.
It has been construed as meaning that the administration of justice
would be brought into disrepute if the admission of the evidence
in
question would render the trial unfair (
R v Jacoy
(1989) 38
CRR 290
at 298). In
R v Collins
[1987] 1 SCR 265
, a police
officer violated the accused's rights by grabbing him by the throat.
The accused had a bag of heroin in his hand, which
the State sought
to admit. The Supreme Court of Canada held that a trial is rendered
unfair if the evidence is self-incriminating,
such as a confession.
The use of such evidence would render the trial unfair, for it did
not exist prior to the violation and it
strikes at one of the
fundamental tenets of a fair trial – the right against
self-incrimination. But
Collins
drew a distinction between
real and testimonial evidence. While it viewed testimonial evidence
(such as a confession) as undermining
trial fairness, it expressed
doubt that real evidence, discovered derivatively as a result of
unconstitutional conscription, could
render a trial unfair because
the real evidence existed irrespective of the violation of the
Charter and its use does not render
the trial unfair.
[13] In the
later case of
Thomson Newspapers Ltd et al v
Director of Investigation and Research et al
(1990)
67 DLR (4th) 161, La Forest J stated:
'A
breach of the Charter that forces the eventual accused to create
evidence necessarily has the effect of providing the Crown with
evidence it would not otherwise have had. It follows that the
strength of its case against the accused is necessarily enhanced
as a
result of the breach. This is the very kind of prejudice that the
right against self-incrimination, as well as rights such
as that to
counsel, are intended to prevent. In contrast, where the effect of a
breach of the Charter is merely to locate or identify
already
existing evidence, the case of the ultimate strength of the Crown's
case is not necessarily strengthened in this way’.
Canadian jurisprudence has since rejected a strict
distinction between real and testimonial evidence holding that the
Collins
distinction was unfounded (see
R
v Burlingham
(1995) 28 CRR (2d) 244).
For example
R
v Ross
(1989) 37 CRR 369
at 379
emphasized that the admissibility of evidence under s 24(2) depended
ultimately not on its nature as real or testimonial,
but on whether
or not it would only have been found with the compelled assistance of
the accused.
[14] In
Pillay
(at 432
e
-
h
), Mpati DP and Motata AJA
summed up the Canadian position as follows:
‘
What
emerges from this is that evidence derived (real or derivative
evidence) from conscriptive evidence, ie self-incriminating
evidence obtained through a violation of a Charter right, will be
excluded on grounds of unfairness if it is found that, but for
the
conscriptive evidence, the derivative evidence would not have been
discovered.
And Scott
JA, who wrote separately, expressed himself thus at 445
c
-
e
:
‘
As
noted by Martland J in
R v Wray
(1970) 11 DLR (3d) 673 at 691,
there is a clear distinction between unfairness in the method of
obtaining evidence and unfairness
in the actual trial. The former
does not necessarily result in the latter. Where the infringement
results in the creation of evidence
which would not otherwise exist,
for example a self-incriminatory statement or, as it is sometimes
called, conscriptive evidence,
it is generally accepted that the
admission of such evidence will affect the fairness of the trial. The
reason, of course, is that
without the infringement the evidence
would not have come into existence. But where, as in the present
case, the infringement results
in the discovery of a fact, ie the
presence of the money in the roof, which would have existed whether
there was an infringement
or not, the impact on the fairness of the
trial, if any, is less obvious.’
Both
judgments appear to be at one in respect of the kind of evidence with
which we are here concerned, namely ‘self-incriminatory’
or ‘conscriptive’ evidence. Whether they, likewise, are
at one in respect of the other category alluded to, namely
‘derivative’ evidence, need not detain us.
[15]
Although s 35(5) of the Constitution does not direct a court, as does
s 24(2) of the Charter, to consider 'all the circumstances'
in
determining whether the admission of evidence will bring the
administration of justice into disrepute, it appears to be logical
that all relevant circumstances should be considered (
Pillay
at 433
h
).
Collins
lists a number of factors to be considered in the determination of
whether the admission of evidence will bring the administration
of
justice into disrepute, such as, for example: the kind of evidence
that was obtained; what constitutional right was infringed;
was such
infringement serious or merely of a technical nature and would the
evidence have been obtained in any event.
In
Collins
(at 282), Lamer J reasoned that the concept of disrepute necessarily
involves some element of community views and ‘thus requires
the
Judge to refer to what he conceives to be the views of the community
at large'.
Pillay
(at
433
d-e
)
accepted that
whether the admission of
evidence will bring the administration of justice into disrepute
requires a value judgment, which inevitably
involves considerations
of the interests of the public.
[16] To the
extent here relevant s 35(1) and (2) of the Constitution provides:
‘
(1)
Everyone who is arrested for allegedly committing an offence has the
right –
(a)
to remain silent;
(b)
to be informed promptly –
(i)
of the right to remain silent; and
(ii)
of the consequences of not remaining silent;
(2)
Everyone who is detained, including every sentenced prisoner, has the
right –
(b)
to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
(c)
to have a legal practitioner assigned to the detained person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly;’
Of
those rights, Froneman J (
S v Melani & others
1996 (1)
SACR 335
(E) at 347
e
-
h
) observed:
‘
The
right to consult with a legal practitioner during the pre-trial
procedure and especially the right to be informed of this right,
is
closely connected to the presumption of innocence, the right of
silence and the proscription of compelled confessions (and admissions
for that matter) which “have for 150 years or more been
recognised as basic principles of our law, although all of them have
to a greater or lesser degree been eroded by statute and in some
cases by judicial decision” (in the words of Kentridge AJ
in
Zuma's
case). In a very real sense these are necessary
procedural provisions to give effect and protection to the right to
remain silent
and the right to be protected against
self-incrimination. The failure to recognise the importance of
informing an accused of his
right to consult with a legal adviser
during the pre-trial stage has the effect of depriving persons,
especially the uneducated,
the unsophisticated and the poor, of the
protection of their right to remain silent and not to incriminate
themselves. This offends
not only the concept of substantive fairness
which now informs the right to a fair trial in this country but also
the right to
equality before the law. Lack of education,
ignorance and poverty will probably result in the underprivileged
sections of
the community having to bear the brunt of not recognising
the right to be informed of the right to consultation with a lawyer.
(Cf
S v Makwanyane (supra
at [paras 49, 50 and 51]).)’
[17]
It is clear that the rights in question exist from the inception of
the criminal process, that is from arrest, until its culmination
(up
to and during the trial itself).
In the case of the
appellant’s co-accused, accused 1, the State produced what was
described as a standard constitutional rights
warning form, to which
was appended his signature as proof that he had indeed been warned.
Not so in respect of the appellant.
Neither
Mbatha, nor Govender were models of clarity as to exactly what was
conveyed to the appellant. But, even were it to be accepted
that the
cumulative effect of their evidence is that there was a warning of
sorts, it appears to have been woefully inadequate.
For, whilst there
is some reference in the evidence of Govender and Mbatha to the
rights to silence and legal representation, there
is no indication
that the appellant was warned of the consequence of not remaining
silent (the logical corollary of the right to
silence) or of his
entitlement to the services of a legal representative at State
expense. There was some suggestion in argument
from the bar in this
court that such deficiencies as there were came to be cured by the
rather detailed warning by Captain Eva.
But what is readily apparent
from the document introduced into evidence, is that by the time the
appellant had been warned by Captain
Eva he had already confessed to
the robbery. It is important to appreciate that
a
constitutional right is not to be regarded as satisfied simply by
some incantation which a detainee may not understand. The purpose
of
making a suspect aware of his rights is so that he may make a
decision whether to exercise them and plainly he cannot do that
if he
does not understand what those rights are (
R
v Cullen
(1993) 1 LRC 610 (NZCA) at
613G-I). It must therefore follow that the failure to properly inform
a detainee of his constitutional
rights renders them illusory. What
must govern is the substance of what the suspect can reasonably be
supposed to have understood,
rather than the formalism of the precise
words used (R v
Evans
(1991)
4 CR (4th) paras 144, 160 and 162).
[18] If it
is accepted, as I think it must be, that the appellant was not
properly warned of his constitutional rights, then it
must follow
that there was a high degree of prejudice to him because of the close
causal connection between the violation and the
conscriptive
evidence. For, plainly, the rights infringement resulted in the
creation of evidence which otherwise would not have
existed. And as
it was put in
R v Ross
(1989)
37 CRR 369
at 379 ‘ . . . the use of
any
evidence
that could not have been
obtained but for the participation of the accused in the construction
of the evidence for the purposes
of the trial would tend to render
the trial process unfair.’
[19]
The police did not employ any other investigative techniques to link
the appellant to the crime. Their investigation, which
had been
ongoing for some two months, did not lead them to the appellant.
Instead, it was the accusing finger of an informer that
pointed them
in the appellant’s direction. There was thus, at the time of
his arrest, no other evidence that linked him to
the offences. A few
hours after his arrest he had furnished to the police the
self-incriminating evidence, upon which, without
more, he was
ultimately convicted. The evidence adduced by Govender and Mbatha of
what transpired from the time of the appellant’s
arrest until
he arrived at a confessing state of mind, so to speak, is unclear and
far from satisfactory.
[20]
In
R v Ndoyana &
another
1958
(2) SA 562 (E)
at 563 De Villiers JP made the point that:
‘
The
circumstances which led up to an accused person's appearance before a
magistrate or justice of the peace to make a confession
are not less
important than the circumstances surrounding the actual making of the
confession.
From the time an accused person is arrested until he is
allowed on bail or brought to trial he is in the custody, power and
control
of the police. If before his trial he expresses the desire to
make a confession the police will know the exact circumstances under
which he came to express this wish and everything that went before
and led, or could have led, up to it. Evidence of these circumstances
should be given.'
And
in
S v Majozi
1964 (1) SA 68
(N) at 71E-G, Harcourt J put it
thus:
‘
As
long ago as
R v Gumede
1942 AD 398
it was stressed that the
interposition of the magistrate or justice of the peace should not be
permitted to give an aura of
respectability and admissibility to
a statement which might be suspect in regard to it being motivated by
previous events. One
must not permit the proceedings before the
magistrate or justice to draw a veil between the preceding events and
the completed
confession. The preceding events should be investigated
to convince the Court beyond reasonable doubt of all the
requirements
in the section set out.’
[21]
Both the trial court and the full court focused solely on the
voluntariness of the appellant’s conduct. Neither touched,
even
tangentially, on the Constitution’s exclusionary provision –
s 35(5), or appeared to appreciate as
Van
der Merwe in PJ Schwikkard et al
Principles
of Evidence
3ed (2009) para 12.9.7
points out:
‘
If
an accused was not prior to custodial police questioning informed by
the police of his constitutional right to silence, the court
might in
the exercise of its discretion conclude that even though the accused
had responded voluntarily, all admissions made by
the accused to the
police should be excluded in order to secure a fair trial.’
The
exercise of the relevant discretion leads to the conclusion, in my
view, that those factors which justify exclusion materially
outweigh
those which call for admission.
[22]
Having given the matter anxious consideration, and not without some
hesitation, I arrive at the conclusion that the evidence
should have
been excluded.
I accept that particularly in the current state
of endemic violent crime, the public reaction to the exclusion of
such evidence
is likely to be one of outrage. But we need to remind
ourselves that
s 35(5) is designed to protect
‘even those suspected of conduct which would put them beyond
the pale’ (
Key v Attorney-General,
Cape Provincial Division
[1996] ZACC 25
;
1996 (4) SA
187
CC para 13). To borrow once again from
Tandwa
(para 121):
‘
But
in this country's struggle to maintain law and order against the
ferocious onslaught of violent crime and corruption, what
differentiates those committed to the administration of justice from
those who would subvert it is the commitment of the former
to moral
ends and moral means. We can win the struggle for a just order only
through means that have moral authority. We forfeit
that authority if
we condone coercion and violence and other corrupt means in
sustaining order.
’
[23] It
follows that the appeal must succeed and in the result it is upheld
and the conviction and sentences imposed pursuant thereto
are set
aside.
______________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellant: S B Mngadi
Instructed by:
PMB
Justice Centre, Pietermaritzburg
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: N Dube
Instructed by:
Director of Public Prosecutions, Pietermaritzburg
Director
of Public Prosecutions, Bloemfontein